Prenuptial Agreement – Is This the Beginning of the End?

prenuptial agreement

5 Tips to Making the Process Easier

There is something inherently difficult – perhaps even distasteful – about the process of creating a prenuptial agreement.  After all, the anticipation of a wedding is a process of merging two separate and individual lives into one intertwined union.   And yet, negotiating a prenup anticipates the end of that union! How UN-romantic!  How can you plan both for the beginning and the dissolution of your partnership at the same time?

Here are some tips to make the process easier:

  • Understand why you are creating the prenuptial agreement.  Some examples:
    • Are you or your partner likely to inherit a substantial sum from your birth family?
    • Do you protect the inheritance of your children from a first marriage or other family members?
    • Do you or your partner already own property that you want to make sure stays separate?
  • Work with your partner to create your own shared goals for the prenuptial agreement itself.  The document can do much more than meet the originally intended need, so use it to create a stronger union between you.  Some of your shared goals might be:
    • To clarify which property you will keep separate and which you will share.
    • To clarify exactly what assets you are each bringing to the marriage.
    • To protect your fiancé from your personal debt (e.g. school loans).
    • To define your estate plans, particularly if either of you have responsibility for other family members.
    • To get a clearer picture of how you each handle financial decisions now and to clarify how you will handle your finances during the marriage.
    • To specify what will happen in case of divorce or death.
  • Work with your partner to set some guidelines and goals for the process you will use to create the agreement.  Some examples of these guidelines might be:
    • We will be open and honest with each other about our respective financial situation.
    • We agree to each face our fears about money.
    • We agree to each be respectful and supportive of the other, to listen, and to work together to solve any problems or to overcome any obstacles that may arise.
    • We agree to take the time necessary to create this agreement so that we each have time to carefully consider – and get advice on – its provisions.
  • Decide what process you will use to make decisions and to memorialize them in an agreement.  For instance, you might decide:
    • Mediation – where the two of you sit down with a mediator, who structures and guides the conversation and helps you to talk it out.  While the mediator can often write up the actual agreement, you should each hire your own mediation-friendly reviewing attorney to go over it with you before you sign it.
    • Collaborative process – where the two of you sit down with your own collaborative attorneys who are trained as mediators, who structure and guide the conversation and help you talk it out.   One of them will write up the agreement and the other will review it.  Although it is a little more expensive during the decision making period (since you are paying for one professional instead of two), you have the advantage of getting legal advice along the way, while still being in a process that supports your union.
    • Negotiated process – still the most common, this is where a matrimonial attorney meets with the “monied” spouse, creates an agreement that s/he believes is fair, and sends it to the “nonmonied” spouse for review.  The nonmonied spouse then hires an attorney to negotiate on his/her behalf.  While this can be fair and you can still come up with a fair settlement, it has the potential for becoming adversarial in a short time.
  • Get started early – months before the wedding is really best – and get going!

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About Joy Rosenthal

Joy S. Rosenthal, Esq. is an experienced, caring New York City-based Family and Divorce Professional Mediator and Attorney. Joy founded Rosenthal Law & Mediation in 2006 to use both law and mediation as a tool to help families as they move through transitions. Her services include Divorce Mediation and Elder (adult sibling) Mediation, Adoptions, Collaborative Divorce, and representation in custody and visitation disputes. She also offers wills and estate planning. Visit Joy at www.joyrosenthal.com.

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